This blog comments on Canadian (and occasionally comparative) national security law to update my National Security Law textbook and now also my 2015 book, False Security: The Radicalization of Anti-terrorism, co-authored with Kent Roach.

Please also see www.antiterrorlaw.ca for Bill C-51-related analyses by Craig Forcese and Kent Roach.

For narrated lectures on various topics in national security law, please visit my 2017 "national security nutshell" series, available through iTunes.

Ed note: I will keep with post "evergreen", adding information about new peace bonds as I become aware of it.

Peace bonds in terrorism matters have been in the news repeatedly this week, and I have been receiving a number of calls about what these are and how they work. I hope this synopsis helps.

Peace bonds (more technically, “recognizances on conditions”) are essentially restraining orders. They are relatively commonplace in a non-terrorism context. Thus, a person labouring under a fear (based on reasonable grounds) that an individual may commit certain personal injury offences, sexual offences, certain offences relating to intimidation of the justice system or a journalist, or a criminal organization offence may bring the matter to a provincial court judge (although in some instances only with permission of the attorney general).

Terrorism Peace Bonds after 9/11

After 9/11, this list was expanded to include a terrorism offence. And to be clear: here I am speaking of regular peace bonds, and not the peace bond process that can flow from what is colloquially known as “preventive detention” under s.83.3 of the Criminal Code (not as of yet ever used, as best I can tell).

In relation to the regular peace bond process: A person (in practice, a police officer) “who fears on reasonable grounds that another person will commit . . . a terrorism offence may, with the consent of the Attorney General, lay an information before a provincial court judge.” If the provincial court judge was persuaded that these reasonable grounds for the fear exist, she could order the defendant to “enter into a recognizance to keep the peace and be of good behaviour” for up to twelve months (and up to twenty-four for a convicted terrorist), and could impose other reasonable conditions. In its original form, refusal by the accused to enter into the court-ordered peace bond was punishable by imprisonment for up to twelve months, and a breach of the bond was a criminal offence, punishable by up to two years imprisonment.

Impact of Bill C-51

The Tory government used Bill C-51 to lower thresholds for acquiring terrorism peace bonds. They inserted a “may” where the 2001 law used a “will,” and also increased the penalties for breaching any peace bond to a maximum of four years imprisonment, while suggesting to judges a new range of conditions. As a result, “[a] person who fears on reasonable grounds that another person may commit . . . a terrorism offence may, with the consent of the Attorney General, lay an information before a provincial court judge.”[1] If the provincial court judge is persuaded that these reasonable grounds for the fear exist, he may order the defendant to “enter into a recognizance . . . to keep the peace and be of good behaviour” for up to twelve months (and up to five years for a someone with a terrorist conviction), and may impose other conditions to secure good conduct. A refusal by the accused to enter into the recognizance is punishable by imprisonment for up to twelve months. A breach of a recognizance is a criminal offence, punishable by up to four years’ imprisonment.

How often have they been used?

[Updated after originally drated to reflect fact that Driver has, in fact, entered into a peace bond, which I totally missed in February.]

At of the time of this writing, I estimate the number of terrorism peace bonds at 16 since the original 9/11 law. This not-quite-back-of-the-envelope number is based on December 2015 reporting by Stewart Bell. Mr. Bell was in turn basing his reporting on a figure from Public Prosecution Services of Canada: in 2015, “police have sought terrorism-related peace bonds against nine defendants in four provinces, according to figures provided by the Public Prosecution Service of Canada.” In addition, we know that there were at least 6 peace bonds before this date (although it is possible that there were 8, as noted below). There have been 4 peace bond processes underway in 2016, that I am aware of. Driver has now in fact agreed to the peace bond -- a perfect record it seems of the Crown not having to take any peace bond matter to full adjudication in court. Another, against Kevin Omar Mohamed, has now been abandoned in favour of outright criminal charges. Another -- Habib -- has morphed into outright criminal charges, but reportedly there is still a peace bond in the mix (a prospect I can't explain and find puzzling and wonder if is true). And one more just concluded with a peace bond (Elabi) that, despite an apparent typo in the reference to the Criminal Code section, was about terrorism. So I have sort of circled all this uncertainty, and suggested that there are many as 16 peace bonds that have now come to pass.

But, there is a margin of error in this number, which seems to range from 15 to 19. The basis of this ranged estimate is as follows:

Name

Entered into under the original, pre-C-51 law up to 2015

1. Aboud

Toronto 18 case, entered into as a plea agreement

2. Ghany

Toronto 18 case, entered into as a plea agreement

3. Jamal

Toronto 18 case, entered into as a plea agreement

4. Youth #2

Toronto 18 case, entered into as a plea agreement

5. Youth #3

Toronto 18 case, entered into as a plea agreement

6. Dirie

Toronto 18 case, entered into after release from custody (and later violated when Dirie became a foreign fighter)

7. Unknown #1

Case referenced by PPSC in testimony before a parliamentary committee, and reportedly imposed as result of criminal investigation. Possibly the youth ultimately charged in Thunder Bay on threatening and passport offences. See Stewart Bell’s story.

8. Unknown #2

Case referenced by PPSC in testimony before parliamentary committee, and reportedly imposed as result of criminal investigation by late 2014.

Montreal case. Reportedly the prosecutor was still seeking peace bond even while proceeding with outright criminal charges.

14. Elabi (Omar)

Montreal case (court docs say s.810.01, but must be typo given description of feared conduct and must instead be s.810.011).

15. Driver

Winnipeg case -- peace bond looked like it would be contested, but in fact Driver agreed to the peace bond in Feb.

Others

Four mystery others

Potentially four others. In late 2015, PPSC said there were 9 instances where peace bonds had been sought in that year. Assuming this number included those identified in #9-12 above and Driver, that would leave 4 peace bond applications I do not know about. It is possible that three of these are the peace bonds that were originally sought against individuals in Quebec, but set aside in favour of a prosecution for an offence (Jamil, Dejermane and reportedly an unnamed youth). But I do not know who PPSC was including in their late 2015 count. Hence the uncertainty.

Yes, in principle, but with caveats. As Kent Roach and I argue in our very-reasonably-priced-and-exhaustive-book-that-you-really-should-buy, False Security:

Peace bonds are an obvious draw for the police: they do not require the levels of evidence required for an outright prosecution. Instead, authorities must simply prove that they have reasonable grounds for a fear that the target may commit any of a broad range of terrorism offences, one of the lowest standards of proof in Canadian law. And indeed, the past pattern suggests that they may need to prove nothing — the defendant will consent to the peace bond conditions to avoid a court proceeding.

… But no one should discount the impact of peace bonds on liberty interests. The Canadian system differs from the UK TPIM approach [the closest equivalent in the UK]: it suggests a number of conditions, but does not set an outer limit. The conditions it does list include: wearing an electronic monitoring device; curfew; abstaining from consuming intoxicants; and a bar on possessing weapons and explosives. The judge can also order participation in a “treatment program,” and one of the issues in the Manitoba case may be whether “religious counselling” is a “treatment program.” As discussed below, this condition may allow Canada to address a shortcoming in the UK control order/TPIM approach: the absence of an exit strategy. At the same time, it may also result in claims that forced “religious counselling” violates freedom of religion. …

…[I]n relation to terrorism offences, the feared conduct may be vast, amorphous, and never carefully articulated (at least in public), if the Montreal cases are indicative. The state has, in other words, a substantial discretion to craft conditions. As a result, peace bond conditions may come to look much like some of the conditions imposed on [immigration] security certificate named persons. It is certainly already clear that peace bonds are being used to restrict communication and Internet use, as were security certificate conditions. For this reason, the potentially formidable reach of the peace bond should not be underestimated. A peace bond is a government-crafted, judicially imposed set of behavioural standards tailored to individual persons. Onerous conditions imposed as a part of the bond may be easily breached, permitting the subsequent incarceration of a feared security risk for behaviour that is benign (even commonplace) in its own right. For instance, a person barred from accessing a room with a computer violates the peace bond by walking into such a room. The person could potentially face a maximum of four years imprisonment for breaching any condition in a peace bond.

…In this manner, peace bonds become a hair-trigger allowing the government to pursue easily proved and potentially banal peace bond violations as a means to incarcerate a person, without troubling itself with a prosecution for terrorism. As such, they are somewhat similar to the Al Capone strategy of charging a suspected terrorist with a different, more easily proven crime, although with the important difference that the breach here will involve behaviour that is not criminal for anyone else. … Pushed to the extreme, there may be no wrong answers to the speculative questions that the judge must answer. In other words, “guilt” for a peace bond is a matter of awkward prognostication. As the criminal law embraces prevention and risk management, its sharpness as an instrument to determine facts and denounce proven — rather than future — crimes diminishes.

…All this begs inevitable questions about constitutionality. The constitutionality of anti-terrorism peace bonds has never been tested — something that seems likely to change because of the Manitoba case. But the Ontario Court of Appeal upheld a different species of peace bond: that guarding against sex offences directed at minors.[2] There, the defendant urged that the peace bond amounted to a “status offence”; that is, “an offence based on a person’s status alone, . . . based on a person’s medical diagnosis or even on a person’s past criminal record but without any current offending conduct.”[3] For this reason, and because of its overbreadth, the defendant argued peace bonds violated the fundamental justice promised by section 7 of the Charter.

The court agreed that the peace bond amounted to a restraint on liberty, and thus triggered the application of section 7 of the Charter. It concluded, however, that fundamental justice was not offended where the provision was largely geared to bona fideprevention, and was not truly penal in nature. It mattered that the peace bond was narrowly tailored, restricting the defendant’s liberty in respect to a large, but reasonably discrete group of persons (minors).[4] This allowed “a defendant to lead a reasonably normal life.”[5] Some analysts point to this decision in discussing the propriety of anti-terrorism peace bonds. The scope of the peace bond at issue in the Ontario case was, however, much more limited than those likely to employed for anti-terror purposes. If present patterns are an indication, the anti-terror peace bond will be broader and more intrusive, potentially constraining liberty in every dimension of life, including issues of freedom of expression, freedom of association, and mobility rights, among others. It is difficult, in these circumstances, to draw a straight line between the Ontario Court of Appeal holding and a conclusion on the constitutionality of anti-terrorism peace bonds.

…We think peace bonds have an anti-terror role — a potentially important role. But we need to be clear-eyed on the risks. Whenever standards of evidence are this relaxed, the chance of false positives increases. Therefore, peace bonds are vulnerable to overreach. In that respect, they may prove too strong, wrapping the wrong people into their stifling embrace. It is not clear how such false positives will be detected. A defendant intimidated into consent may choose the least awful out of a series of bad options: agreeing to the peace bond conditions. Even if they challenge the measures, a court can remedy only so much when confronted with the modest evidentiary burden the peace bonds process places on the state. When a judge is asked to apply the vague standards of a peace bond, there may be no, or at best very few, wrong answers.

As of this date, Stewart Bell at the National Post reports that in addition to El Shaer, "Six other terrorism peace bonds are currently before the courts — three in Ontario and three in Quebec. Only one is in effect, against Aaron Driver, a Winnipeg ISIL supporter. Two others recently expired and a third was withdrawn."